Dissertation committee:
Ζαφείριος Τσολακίδης, Αναπληρωτής Καθηγητής Νομικής Σχολής ΕΚΠΑ
Κωνσταντίνος Χριστοδούλου, Καθηγητής Νομικής Σχολής ΕΚΠΑ
Παρασκευή Παπαρσενίου, Καθηγήτρια Νομικής Σχολής ΕΚΠΑ
Γεώργιος Μεντής, Καθηγητής Νομικής Σχολής ΕΚΠΑ
Γεώργιος Γεωργιάδης, Καθηγητής Νομικής Σχολής ΕΚΠΑ
Κωνσταντίνος Καραγιάννης, Επίκουρος Καθηγητής Νομικής Σχολής ΕΚΠΑ
Summary:
The purpose of this study is to examine the protection of the guarantor in modern banking transactions and the means that the guarantor has, to protect himself against the enforcement of the guarantee by the creditor bank. Despite the evolution of the guarantee institution in light of the needs of modern transactions, there is still a significant lack of harmonization among member states regarding the legal framework of credit agreements. Thus, guarantee agreements are exclusively governed by national law, which does not provide any special provisions for banking transactions. Therefore, in the absence of special legislation, the research for the protection of the guarantor in banking transactions focuses on three main areas: firstly, the possibility to contest the validity of the guarantee agreement through the general provisions of the Civil Code; secondly, the special provisions of guarantor protection of the special part of the Civil Code; and thirdly, the special provisions of Law 2251/1994 on consumer protection, both before and after its amendment by Law 4512/2018.
The aim of the thesis is to examine the legal issues arising from guarantor’ s protection against the creditor bank in modern banking transactions, which are addressed in three stages: Firstly, the issues arising from the application of the protective provisions on guarantee agreements under the Civil Code and the special legislation, particularly Law 2251/1994 on consumer protection, are analyzed. Special emphasis is placed on how these issues are interpreted by the Greek and foreign case law, including the case law of Court of Justice of the European Union (CJEU). Secondly, a critical assessment is made of how legal theory and case law have addressed these issues, aiming to balance the conflicting interests of the parties, namely the guarantor, the creditor bank, and the principal debtor. Thirdly, where necessary, proposals are made to better balance these conflicting interests.
The first part, which serves as an introduction discussing the key characteristics of the guarantee agreement, its distinction from other related concepts, the subject and content of the guarantee.
The main part of the study begins with the second chapter, which explores the possibility of contesting the validity of the guarantee agreement itself. Specifically, it examines whether guarantees provided by inexperienced, non-business-involved, and psychologically dependent close relatives of the principal debtor (in which guarantees the guarantor’ s entire property is reserved), can be deemed invalid, as contrary to good morals (Articles 178-179 of the Civil Code) or otherwise voidable, due to a fundamental error (Articles 140 et seq. of the Civil Code), leading to the release of the guarantor from his contractual obligations. In the above context, it is also analysed whether, due to the lack of special legislation, the bank is obliged to inform the guarantor for the rights that he waives and the risk that he assumes, and if the breach of this obligation could result to the partial or total release of the guarantor.
The third chapter focuses on interpretation of the legal issues arising from the application of the protective provisions for the guarantor under the Civil Code against the creditor bank. Additionally, it is also examined whether the guarantor may waive these rights under the Civil Code.
The fourth chapter examines the possibility of protecting the guarantor through the application of the special provisions for consumer protection. Specifically, it addresses the controversial issue, as to whether and under what conditions the guarantor is considered a consumer enjoying the protection under Law 2251/1994, both before and after its amendment by Law 4512/2018. The latest amendment adopted a narrow definition of the consumer - i.e., a natural person acting for reasons outside their commercial, business, industrial, or professional activity - while the explicit reference to the protection of the guarantor was omitted. Therefore, the interpretation of the new provision in relation to the guarantor is perhaps more relevant than ever. The significance of this issue is also highlighted by examining, whether the guarantor may waive its protective rights under the General Terms and Conditions.
The fifth and final chapter of the main part of the study focuses on the legal issues arising from providing a guarantee in a credit agreement with a current account credit facility, such as the status of the guarantee for claims entering the current account, the guarantor’ s obligation in favour of the final balance of the account, following subsequent amendments to the credit agreement, that have not been signed by the guarantor (particularly those increasing the original credit limit), as well as other legal issues arising from the recognition of the final balance of the current account by the principal debtor.
In its conclusion, the study presents the findings of the entire research, as well as legislative proposals aiming to enhance the protection of the guarantor in banking transactions.
